ICN
Framework of Competition Assessment Regimes
Prepared by
ICN Advocacy Working Group
Presented at the ICN 14th Annual Conference
Sydney, April 2015
1
Contents
Introduction
Content of the Framework
Tables of the general features of competition assessment regimes
1. Location of competition assessment in the policy development process
2. Body responsible for conducting the competition assessment
3. Remit of the competition agency to undertake the competition assessment
4. Indirect or informal involvement of the competition agency in the context
where it is not directly responsible for competition assessment
5. Tools used to facilitate competition assessment
6. Scope of the competition assessment
Illustrations of ICN member competition assessment regimes
Bulgaria
Canada
Colombia
European Union
Finland
France
Gambia
Greece
Israel
Italy
Korea
Japan
Mexico
The Netherlands
Papua New Guinea
Portugal
Russian Federation
South Africa
Spain
Sweden
Switzerland
Tunisia
United Kingdom
United States
Zambia
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Introduction
The mission of the Advocacy Working Group (AWG) is to develop practical tools and
guidance, and to facilitate experience sharing between ICN member agencies, to improve
the effectiveness of ICN members’ competition advocacy activities.
The Framework of Competition Assessment Regimes is a complement to the 2014 ICN
Recommended Practices on Competition Assessment.
The Framework consists of tables setting out general features of competition assessment
regimes, which ICN member agencies have completed in line with practices in their
respective jurisdictions, and more detailed illustrations of competition assessment regimes
provided by ICN members.
The purpose of this Framework is to provide a broad overview of the range of competition
assessment regimes and processes that exist, in order to:
• share and disseminate alternative illustrations of competition regimes across
jurisdictions; and
• provide a useful guide of how competition assessment is operationalized; and
• describe the roles of competition agencies in the process.
The Framework does not seek to reflect ICN members’ consensus on particular regimes. It is
intended to be a resource for those engaged in competition advocacy to assess the
competitive effects of public policies. The Framework recognises that competition
assessment can take many different forms, but identifies general features that can be
applied to many competition assessment regimes. These features are presented in six
different sections
The Framework of Competition Assessment Regimes and the 2014 Recommended Practices
on Competition Assessment have been produced as part of the Competition Assessment
Project of the AWG conducted under the leadership of the French Autorité de la
concurrence.
Thanks
The AWG is grateful to the ICN member agencies and NGAs that completed the tables and
provided illustrations or input into the drafting, and to Hilary Jennings, an independent
competition consultant for her contribution to the drafting of the Framework.
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Content of the Framework
The Framework is made up of two parts: (i) general features of competition assessment
regimes and (ii) jurisdiction illustrations
TABLES of the general features of competition assessment regimes -- The tables in each of
the six sections below set out the principal ways that competition assessment regimes are
structured. Within each jurisdiction there may be a difference between, for example,
regimes for reviewing the competition impact of proposed new policies and those seeking to
change existing ones. The features presented in this Framework are intended to cover both
such types of regime, whether formal or informal, or whether conducted by the competition
agency or a different body.
The sections are not mutually exclusive. Rather they are intended to build a picture of how
competition assessment regimes are structured and implemented. Institutional
implementation of competition assessment will depend on a number of factors in a given
jurisdiction. These may include: the existence of a federal system, staffing strengths of
different parts of government, and the political environment, among others. Indeed there
can be no one-size-fits-all approach to the implementation of competition assessment.
ILLUSTRATIONS of ICN member competition assessment regimes -- The tables also contain
a list of ICN member jurisdictions whose competition assessment processes and institutions
illustrate the particular features. Additionally, the Framework presents descriptions of
competition assessment regimes in individual ICN member jurisdictions to provide a brief
overview of how the regimes operate in practice, and provide further context to the
Framework.
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Tables of the general features of competition assessment regimes
1. Location of competition assessment in the policy development process
What does competition assessment
apply to?
New legislation/ regulations/
policies only
Jurisdictions
Colombia; EU; Korea; South Africa; The Netherlands
(legislation specifically affecting the areas of ACM’s
competence)
Existing legislation/ regulations/
policies only
Papua New Guinea
Both new and existing
Bulgaria; Finland; France; Gambia; Greece; Israel;
Italy; Korea; Japan; Mexico; Portugal; Russian
Federation; Spain; Sweden; Switzerland; Tunisia;
United Kingdom; United States; Zambia
Competition assessment forms part
of broader framework to assess
impact of policies on areas other
than competition
Canada; EU; Israel; Italy; Korea; Japan; Russian
Federation; Spain; Sweden; United Kingdom; Zambia
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2. Body responsible for conducting the competition assessment
Which body is responsible for
conducting the competition
assessment?
Competition agency
Jurisdictions
Bulgaria; Canada; Colombia; EU; Finland; France;
Gambia; Greece 1; Israel (mostly as a consultant, if
relevant regulation applies); Italy; Korea; Mexico; The
Netherlands; Papua New Guinea; Portugal; Russian
Federation; South Africa; Spain; Sweden;
Switzerland; Tunisia; United Kingdom (ex post);
United States; Zambia
Other government department/
regulator
EU 2; Greece 3; Israel (if relevant regulation applies);
Italy (ex ante only); Japan; Russian Federation; South
Africa; Spain; Sweden 4; Switzerland; Tunisia; United
Kingdom (mainly ex ante, but recently some ex post);
United States
Other, e.g. research institution/
consulting group
Sweden (commissioned research by the SCA) 5
1
In Greece, competition assessment falls, in theory, within the broader context of impact
assessment, which is normally undertaken by the competent line ministry or the General
Secretariat of the Greek government. In practice, line ministries have not yet undertaken any
such assessment. As an aside, the Competition Agency- acting on its own initiative or on the
request of the government - may conduct competition assessments, which it has done over
the course of the last 4 years.
2
Please note the specific nature of the European Commission, integrating the competition
Directorate General in charge of competition policy and other Directorates General in charge
of other sectors (including regulatory/ legislative function).
3
See footnote 1 above.
4
The fact that another government authority conducts a competition assessment on a
specific regulation would not automatically exclude the SCA from conducting a parallel
competition assessment.
5 The SCA sometimes commissions research assignments. Such commissioned research from
research institutions can involve conducting competition assessments.
6
3. Remit of competition agency to undertake the competition assessment
Is there a legal mandate for the
competition agency to undertake
competition assessment?
Specific legal basis for agency to
conduct ex ante competition
assessment
Jurisdictions
Colombia; EU; Finland; France; Gambia; Greece;
Israel (mostly as a consultant, if relevant regulation
applies); Korea; Mexico; The Netherlands; Portugal;
Russian Federation; Spain; Switzerland; Tunisia;
Zambia
Specific legal basis for agency to
conduct ex post competition
assessment or market/sector
studies
Colombia; EU 6; Finland; France; Gambia; Greece;
Israel; Mexico; Portugal; Russian Federation; Spain;
Switzerland; Tunisia; United Kingdom; United States;
Zambia
Is the ex ante competition
assessment compulsory?
Colombia; Gambia; Israel (if relevant regulation
applies); Korea; Portugal; Spain; Sweden (referrals
from government); Switzerland; Tunisia
Derives from general legal basis for
agency’s advocacy activities
Bulgaria; Canada; Finland; France; Gambia; Israel;
Italy; Papua New Guinea; South Africa; Sweden;
United Kingdom (ex ante); United States; Zambia
6
Article 17 of Council Regulation 1/2003 of 16 December 2002 on the implementation of the
rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003).
7
4. Indirect or informal involvement of the competition agency in the context where it
is not directly responsible for competition assessment
Is the agency involved indirectly or
informally in competition
assessment?
Competition agency consulted by
the body responsible for
competition assessment
Agency provides opinion informally
to legislature/ executive/ regulator
Jurisdictions
Canada (body may choose to consult the Bureau, but
is not obliged to); Greece 7; Israel (on a case by case
basis, at the discretion of the responsible body);
Italy; Korea; Japan; Mexico; The Netherlands;
Sweden; Tunisia; United Kingdom (sometimes);
United States
Canada; Colombia; EU; Finland; France; Israel (on a
case by case basis, at the discretion of the
responsible body); Italy; Mexico; Papua New Guinea;
Russian Federation; Spain; Switzerland; United States
7
This remains a possibility where the competition assessment is conducted by the competent
line ministry or the General Secretariat of the Greek government (although to date this has
not yet occurred in practice).
8
5. Tools used to facilitate competition assessment
What tools are used to identify
targets, facilitate and conduct
competition assessment?
Specific criteria are used to assess
the impact on competition
Jurisdictions
Bulgaria; Colombia; Gambia; Korea; Portugal;
Russian Federation; Spain; United Kingdom
The competition agency provides
guidance on competition
assessment and/ or support to
other bodies conducting
competition assessment
Bulgaria; Canada; Colombia; EU; Finland; France;
Greece; Israel; Italy; Korea; Japan; The Netherlands
(ACM assesses the impact on competition law
enforcement rather than competition); Portugal;
Russian Federation; Spain; Switzerland; Tunisia;
United Kingdom; United States
The competition agency monitors
government and legislature work
programmes
Bulgaria; Colombia; EU 8; Finland; France; Gambia;
Greece; Israel (on a case by case basis, according to
priorities); Italy (within agency’s advocacy activities);
Korea; Mexico; Papua New Guinea; Portugal; Russian
Federation; South Africa; Spain; Sweden’
Switzerland; United States; Zambia
The competition agency considers
the work of stakeholders, academia
and/ or NGAs to identify targets for
competition assessment
Bulgaria; Colombia; EU 9; Greece; Israel; Korea;
Mexico; Papua New Guinea; Portugal; Russian
Federation; Sweden; United Kingdom
8
See footnote 2 above.
The European Commission may, on a case by case basis, have regard to the external
sources mentioned as a complementary tool to the European Commission's own assessment.
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9
6. Scope of the competition assessment
What types of policy/ regulation
are subject to competition
assessment?
Sector-wide policies or categories
of policies
Jurisdictions
Canada; Colombia; EU; Finland; France; Gambia;
Greece; Israel (on a case by case basis, according to
priorities); Italy; Korea; Mexico; Papua New Guinea;
Portugal; Russian Federation; South Africa; Spain;
Sweden; Switzerland; Tunisia; United Kingdom;
United States
Individual or specific legislation/
regulations/ policies
Bulgaria; Canada; Colombia; EU; Finland; France;
Gambia; Greece; Israel (on a case by case basis,
according to priorities); Italy; Korea; Japan; Mexico;
The Netherlands (legislation specifically affecting the
areas of ACM’s competence); Papua New Guinea;
Portugal; Russian Federation; South Africa; Spain;
Sweden; Switzerland; Tunisia; United Kingdom;
United States
Exclusions, exemptions or areas of
special treatment
EU; Greece; Israel (on a case by case basis, according
to priorities); Italy; Russian Federation; South Africa;
Sweden; Tunisia; United States
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ILLUSTRATIONS of ICN member Competition Assessment regimes
The following section contains illustrations submitted by ICN members describing their
jurisdiction’s regime for conducting competition assessment of draft and existing legislation,
regulations and policies.
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Bulgaria - Commission on Protection of Competition
The competences of the Bulgarian Commission on Protection of Competition (CPC) in the
field of competition advocacy are specified in Art. 28 of the Law on Protection of
Competition (LPC). In order to protect free economic enterprise and prevent a restriction or
distortion of competition, the Commission shall assess the compatibility of the following
with the provisions of the competition law:
• draft legislative or regulatory administrative or general administrative acts;
• legislative or regulatory administrative or general administrative acts in force;
• draft acts of associations of undertakings, which regulate the activities of their
members.
In relation to the first point above, on the basis of request of state authorities the
Commission prepares opinions on draft legislation, related to competition and advocates for
the removal of those texts which restrict competition.
The CPC can also analyse legislative acts in force and if it finds that they distort or restrict
competition, it makes a proposal for their amendment or repeal.
In addition, the CPC can give opinions on draft acts of associations of undertakings and for
those acts already in force, the CPC proposes amendments to remove contraventions of the
competition rules.
In the Organization Rules of the Council of Ministers and its administration it is envisaged
that the draft legislative acts that are related to the activity of the CPC should be sent for
preliminary assessment.
In accordance with the LPC, the CPC has the right to make recommendations to the
competent state authorities and municipal authorities, that they revoke or amend
administrative acts issued by them, where these result in, or have the potential to result in,
the prevention, restriction or distortion of competition.
The advocacy decisions of the CPC are non-binding and they cannot be appealed.
The CPC has adopted Guidelines for the assessment of legislative and general administrative
acts with competition rules. The Guidelines aim to assist policy makers to incorporate a
preliminary competition impact assessment in the preparation of draft acts. The document
contains a checklist that encompasses possible restrictions of competition. If the state or
local authority is not sure whether the draft act could have a negative impact on
competition, it may request an in-depth assessment from the CPC.
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Canada – Canadian Competition Bureau
The Canadian Competition Bureau (the “Bureau”) performs competition assessments as part
of its advocacy mandate, pursuant to which it advocates to regulatory agencies and
policymakers in favour of allowing market forces to govern sectors and industries as much as
possible.
The Bureau does not have a formal competition assessment regime, instead advocating on
regulations and issues as it becomes aware of their possible impact on competition. As such,
it applies to both new and existing legislation and regulations.
Competition assessment is not integrated into any specific wider framework, but may be
one of the factors that regulators consider when designing their policies and balancing
stakeholder needs and interests. The Bureau frequently plays a support role in such
assessments by providing recommendations and guidance in both formal and informal ways
to regulators and governments. This may include formal regulatory interventions,
submissions, or meetings and phone calls.
Section 125 and 126 of the Competition Act (the “Act”) empower the Bureau to make
representations and call evidence on competition-related matters being considered by
federal or provincial regulatory bodies. Historically, this has frequently taken the form of
Bureau participation in formal regulatory proceedings of sector-specific regulators and
submissions in response for regulators’ calls for comment.
While not expressly stated in the Act, the Bureau has the power to carry out market studies
pursuant to the aforementioned sections 125 and 126 as well as section 7, which sets out its
mandate to administer and enforce the Act. That said, the Bureau does not have the means,
under the Act, to compel the production of information when conducting market studies.
The Bureau can only rely on voluntary participation and publicly available information.
The Bureau may apply its competition expertise in both advocacy efforts aimed generally at
a sector (e.g. our 2014 report on the state of competition in Canadian propane markets),
and at particular policies or legislation (e.g. our 2014 regulatory interventions before the
Canadian Radio-television and Telecommunications Commission concerning regulation of
wholesale wireless services).
13
Colombia - Superintendencia de Industria y Comercio (Superintendence of Industry and
Commerce)
The main objective of the competition advocacy regime in Colombia is to advise the national
government on draft regulations that may have an impact on competition. This advice is
based on economic studies conducted by the Superintendence of Industry and Commerce
(SIC) specifically in matters relating to competition.
The SIC is the only government agency in Colombia with the legal mandate to engage in
competition advocacy. Section 7 of Law 1340 of 2009 determines that regulatory authorities
must inform the SIC in advance of issuing regulations, so that the SIC may render a nonbinding opinion assessing the proposal’s effect on competition. Competition advocacy is
limited exclusively to the examination of draft regulations that may have an impact on the
competitive market dynamic.
Decree 2897 of 2010, implements section 7 of Law 1340 of 2010, and specifies that the
entities obliged to comply with the competition advocacy requirement are “the Ministries,
Administrative Departments, Superintendencies, and Administrative Public Units.” However,
Administrative initiatives that are not “regulatory,” such as legislative proposals, do not
qualify, even if initiated by a Ministry or other affected government agency.
However, in order to determine whether or not a draft regulation should be submitted to
the SIC, regulatory agencies must base their analysis on a standard SIC questionnaire 10,
which focuses on whether the proposed regulation will: lead to restrictions on starting new
businesses; affect the ability of firms to compete or reduce their incentives to compete. If
there is an affirmative answer to one of the questions in the checklist, the agency must
notify the SIC of the proposal 11. The SIC holds several meetings with regulators when they
are uncertain how to complete the questionnaire. These initial meetings with the regulators
are also essential to better understand their standpoint. The Competition Advocacy Group
of the SIC constantly monitors regulatory agendas in order to identify at an early stage those
regulatory projects that may have a potential impact on competition
The competition advocacy function does not extend to new legislation but the SIC follows
the legislative agenda and reviews bills under discussion in Congress, and renders its opinion
when necessary. The SIC’s Group of Regulation, and not the Advocacy Group, is in charge of
this monitoring task but opinions are usually rendered jointly.
The competition strategy adopted by the SIC for rendering competition advocacy opinions is
based on: i) direct contact with the business community to ensure timely intervention in
regulatory proposals and to gain knowledge from the market – especially sophisticated
markets (e.g. the energy sector); ii) interagency coordination between the SIC and the
regulators to promote joint discussions and working groups; and ii) the elaboration of
thorough and reliable economic studies.
10
Resolution 44649 of 2010 issued by the SIC, which resembles the OECD competition
assessment toolkit.
11
According to Section 8 of Decree 2897 of 2010, the intended regulation must be submitted
together with the technical and economic studies made by the regulatory Agency; ii) the
responses given to the questionnaire filled by the regulatory Agencies; and ii) the comment
and observations presented by stakeholders.
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If the responsible agency disagrees with the SIC´s opinion, the agency is required to clearly
state the reasons supporting that conclusion in its decision. The legal effect of either failing
to provide a regulation proposal to the SIC for its evaluation, or disregarding the SIC’s
recommendation without stating the reasons for doing so, is that potential for the
administrative decision to be declared void.
Colombia is currently working on the implementation of the RIA methodology as a tool to
improve the quality of regulations. The domestic agency in charge of this task is the National
Planning Department and the SIC is working closely with the Department to include
competition assessment as one pillar of the regulatory impact assessment. The National
Planning Department is developing 5 pilot projects with different regulatory agencies in
order to gradually implement the RIA methodology. The SIC is taking part in these pilot
projects as an observer.
15
European Union – Directorate General for Competition
Illustration of the 2005 European Commission Sector inquiry into the Energy Sector as a tool
to increase understanding of the competition dynamics of the sector in order to feed into
competition enforcement as well as regulatory initiatives in the sector ("Third Legislative
Package") 12
Issue: DG Competition wanted to increase its in-depth knowledge into the functioning of gas
and electricity markets, identifying obstacles to competition or any other shortcomings. DG
Competition wanted to ensure a full overview of the industry concerned by this exercise so
as to improve the quality of the findings on how energy markets function and to allow
stakeholders to identify potential remedies that could address any of the shortcomings
identified.
DG Competition decided to initiate the Energy Sector Inquiry in June 2005 on a number of
grounds suggested by evidence coming from a number of sources (including complaints,
information from other EU Competition Authorities or other parts of the Commission, etc.).
The decision made particular reference to the following: that cross-border flows in the
electricity and gas sectors were having limited effects on prices; that prices were rising an
there was little trust in the price formation mechanisms; that liquidity on exchanges was low
and prices volatile; that customers had difficulty securing competitive offers from different
suppliers; that network operators appeared to favour their affiliates despite the legal
provisions on unbundling; and that there was high market concentration and limited new
entry.
Engaging with Key Stakeholders: The main stakeholders identified were the undertakings
active in the market (e.g., wholesalers, producers, transmission system operators, traders),
consumers and public authorities. In total the Commission addressed more than 3,000
questionnaires to stakeholders in the sector. Energy policy makers were identified as a way
to influence and shape the policy and legislative development in order to ensure that
competition concerns in the energy sector are appropriately taken into account, in particular
in the Third (legislative) Energy Package 13.
Taking into account the comments received from the stakeholders, as well as further
analysis of the data it gathered, the Commission published, in January 2007, the final report
of the energy sector inquiry.
Effectiveness of DG Competition intervention: Evaluation
The in-depth knowledge gained into the functioning of the gas and electricity markets
proved crucial in advocating for regulatory change (Third Energy Package) with the objective
of liberalising the sector, as it allowed the Commission to speak perceptively about the many
problems it had identified in the sector and also provided it with an insight into potential
solutions to these same problems. In particular, this included the strengthening of the
unbundling provisions to address vertical foreclosure issues, but also the monitoring of
wholesale markets by national regulators, and increased transparency obligations on energy
companies. The weight of DG Competition in these advocacy activities was significantly
For
further
details,
please
see
http://ec.europa.eu/competition/sectors/energy/inquiry/index.html
13 http://europa.eu/legislation_summaries/energy/internal_energy_market/index_en.htm;
see also below under Evaluation.
12
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increased by the fact that it had carried out the energy sector inquiry and had recognition as
fully understanding the issues facing the sector.
The energy sector inquiry was also evidently a knowledge platform for the Commission to
pursue several antitrust cases, addressing many of the issues identified in the sector inquiry
report. Whereas the sector inquiry was an ideal tool for identifying the problems in the
energy sector, it should be clear that vigorous enforcement activity by the Commission
remains the most efficient way to resolve competition issues.
For further information on the EU sector inquiry in the energy sector (and follow-up), please
look at http://ec.europa.eu/competition/sectors/energy/inquiry/index.html
17
Finland – Kilpailu- ja kuluttajavirasto (Finnish Competition and Consumer Authority)
As part of the main objective to safeguard effective economic competition, the task of the
Finnish Competition and Consumer Authority (FCCA) is also to follow the preparation of
rules and regulation concerning the economy and to make initiatives to promote
competition or to dismantle restrictive regulation.
Advocacy focuses on public organisations responsible for regulation, and manifests itself
above all in written and oral communications and interaction. Practical advocacy measures
include initiatives, opinions, stakeholder cooperation and participation in competitionrelated working groups. The aim is to prevent at the outset the creation of potential
problems. The objective is not the dismantling of regulation as such but “smart regulation”,
which refers to regulation that is genuinely necessary, correctly dimensioned and
measurable and which has benefits that genuinely exceeds the drawbacks.
Advocacy work is not entirely directly to legislative steering. For example, competition
neutrality is related to the role of public authorities in the market and the objective here is
to secure neutral competitive conditions between public and private sector undertakings.
This task is primarily carried out through negotiations.
The FCCA’s advocacy task has been provided for in the Act on the Finnish Competition and
Consumer Authority (661/2012) and the Decree on the Finnish Competition and Consumer
Authority (728/2012). The Act states that the FCCA shall, among others, take initiatives to
promote competition and to dismantle any restrictive regulations or orders, and tend to any
other tasks prescribed or ordained to it. The Decree specifies that the FCCA shall monitor
and investigate competitive conditions, follow the preparation of economic legislation and
give statements about questions related to its field, and take initiatives to promote
competition and to dismantle restrictive rules and regulations. The task regarding
competition neutrality was provided for as an amendment to the Competition Act
(948/2011) in 2013.
As regards the process for conducting competition assessment, the FCCA has published a
checklist for the analysis of competition and market impacts (Appendix 1 to the report
“Smart regulation - well-functioning markets" published in 2011). The checklist is in line with
the 2009 Guidelines on Impact Assessment by the European Commission, the Competition
Checklist by the OECD and the Recommended Practices on Competition Assessment by the
ICN AWG. The scope of competition assessment covers both sector-wide and individual
policies.
18
France – Autorité de la concurrence
As per the provisions of the Commercial Code, the French Autorité de la concurrence (“the
Autorité”) is legally entitled to carry out assessment of the impact on competition of draft
(i.e. ex ante) or existing (i.e. ex post) legislation, regulation and policy (“policies”), either
upon request or ex officio.
The law provides that ex ante assessment by the Autorité of the competitive impact of a
draft regulation is mandatory when it directly affects competition (e.g., by restricting the
practice of a profession or access to a market, granting exclusive rights, or imposing uniform
prices or terms of sale). A recent example concerns the opinion submitted by the Autorité to
the Government in 2015 concerning a draft decree regulating the activity of taxis and private
hire vehicles – which subsequently took into consideration some of the recommendations
made by the Autorité to put these two professions on an equal footing.
Ex ante consultation of the Autorité on draft policies can also be requested by Parliamentary
Committees, the Government, public local authorities, professional associations and labor
unions, accredited consumer organisations and chambers of commerce. A recent illustration
involved two opinions issued by the Autorité on the reform of the governance of the railway
sector (regarding a draft law in 2013 and draft decrees in 2015). These opinions prompted a
modification of the proposed legal framework, which reflected most of the Autorité’s
recommendations (e.g., the management of freight infrastructures was fully transferred to
an entity in charge of the railway network separate from that in charge of transport
services.)
Ex post consultation of the Autorité can take place on any type of issue relating to
competition at the request of the same bodies mentioned above, and is always optional. In
2009, upon referral from a prominent consumers’ organisation, the Autorité advocated for a
reform of the legislation in order to enhance competition on the market for borrower's
insurance associated with housing loans. In 2012, in an opinion on the food retail sector
requested by the Paris local council, the Autorité recommended that regulatory barriers to
entry be lowered, and suggested that it be granted a new power to order the divestiture of
assets when warranted by competition concerns.
Finally, the Autorité has the discretionary power to study ex officio the competitive
functioning of any market and, if necessary, to issue recommendations to amend the
applicable legal framework in a pro-competitive manner. For instance, in 2014, the Autorité
launched a study into the market for domestic long-distance coach transport. It found that
regulatory restrictions were the main constraint on the development of the market, notably
due to the obligation for operators to offer such services only if ancillary to an international
transport. The Autorité’s proposals for liberalisation, at least for routes of over 200 km,
received a positive response from lawmakers, and draft legislation was recently introduced
in Parliament.
Furthermore, there is now a constitutional duty on policymakers to conduct a general
impact assessment upon the enactment of new policies. Although this does not require
them to examine possible competition concerns, it can be an incentive for them to refer the
matter to the Autorité or to carry out a self-assessment along the lines of the Guide
published
by
the
Autorité
to
that
effect
(http://www.autoritedelaconcurrence.fr/doc/guide_concurence_uk.pdf).
19
Gambia – The Gambia Competition and Consumer Protection Commission
The Gambia Competition and Consumer Protection Commission (GCCPC) conducts
Competition Assessment as part of its functions, in order to realise its mission of ensuring
healthy and competitive markets for the benefit of consumers in the Gambia.
The Commission is mandated by the Competition Act 2007 to advise government or any
public body on any action taken or proposed to be taken that may adversely affect
competition in the supply of goods and services.
GCCPC acts as an advisor to government by encouraging government departments and
agencies to take into account the potential impact of policies on competition in the policyformulation process.
Competition assessment is conducted in line with GCCPC’s obligation to make sure that
competition is not restricted, prevented or distorted.
Statutory monopolies and businesses with a turnover of not more than 250,000 dalasis, for
example, are not covered by the Competition Act.
20
Greece – The Hellenic Competition Commission
The HCC is an independent administrative authority with administrative and financial
autonomy.
The objective of the Authority’s competition assessment regime is to provide another public
body/authority with the identification of a proposed or existing policy that may unduly
restrict competition and an evaluation of its likely impact on competition. The assessment
procedure takes place either at a policymakers’ request, or at the Authority’s own initiative.
The Competition Act provides explicitly for the advocacy powers of the Authority. According
to Article 23 of the Greek Competition Act (Law No3959/2011):
1. The Competition Commission shall issue an opinion on matters within its competence
either on its own initiative or upon request by the Minister of Economy,
Competitiveness and Shipping or another competent Minister.
2. The Competition Commission shall issue an opinion on proposals to amend this Law
or shall recommend amendments, as appropriate.
3. The Competition Commission shall express an opinion on draft laws and other
regulations that may create barriers to the functioning of free competition. The
Competition Commission’s opinion may be requested by the competent Government
body to which it shall be transmitted. The Competition Commission shall express its
opinion within forty-five (45) days the notification of the draft law or regulation.
4. If the Competition Commission, pursuant to Article 11 of this Law (referring to
Regulation of sectors of the economy), finds that conditions of effective competition
do not exist, due, inter alia, to legislative acts , it shall issue an opinion
recommending that they be repealed or amended. The Commission’s opinion shall be
submitted to the Minister with jurisdiction and copied to the Minister of Economy,
Competitiveness and Shipping.
HCC’s advocacy powers aim at identifying and removing, through recommendations
addressed to the competent ministries and government departments, regulatory obstacles
to competition in sector-wide and individual policies, including policies that introduce
exemptions, exceptions or areas of special treatment.
21
Israel - Israeli Antitrust Authority
The Israeli Restrictive Trade Practices Law, 5748-1988 (hereinafter: "Antitrust Law" or "the
Law") sets the primary statutory framework for competition regulation in Israel. While the
Antitrust Law does not formally include a specific provision which empowers the Israeli
Antitrust Authority (hereinafter: "IAA") or the Director General to conduct competition
assessment exactly in the meaning of the ICN’s Recommended Practices on Competition
Assessment, such competition assessments are undertaken in practice.
First, Section 44A of the Antitrust Law provides the Director General with the authority to
conduct examinations regarding the level of competition in various sectors, including
examination of the existence of competition failures and of barriers to competition.
According to the Law, he/she may hand his reasoned conclusions and recommendations to
the Minister responsible for the sector examined and the Minister of Treasury, and in a
sector that is regulated by another body – also to the head of that body.
Second, there are specific laws and regulations, which oblige regulators in some sectors
(such as banking, communications etc.) to take into account competition considerations, for
example when they grant various licenses. In some cases, the regulators conduct the
competition assessment on their own, while in other cases they ask the IAA to advise and
assist in the evaluation process (given the knowledge and experience the IAA has regarding
competition methodology and assessment).
Third, according to the Law for the Promotion of Competition and Reduction of Economic
Concentration, 5774-2013, the allocation of economic rights (e.g. licenses and permits) and
state assets, which are limited in quantity by government bodies, are subject to competitive
considerations. In cases where the Director General is of the opinion that the allocation of
these rights may have a significant effect on competition, he/she will advise the government
and its agencies regarding the repercussions of their allocation on competition on consumer
welfare. Furthermore, the present Director General was appointed as Chairman of the
Concentration Reduction Committee, which was formed to advise the government on the
ramifications of the allocation of economic rights and state assets on the concentration in
the overall economy.
Finally, the government of Israel has recently initiated a process aimed at improving the
legislative process in Israel. One of the current recommendations (which has not yet been
finalized) is that any new legislation, regulations, policies and their amendments, should be
assessed, among other factors, by their effect on competition.
22
Italy – Italian Competition Authority
The Italian Competition Authority (ICA) may express opinions both on proposed and existing
laws and regulations and this power has been recently strengthened.
• In relation to ex-ante assessment, the ICA has the opportunity to provide an opinion
on draft legislation proposed by Regions through the Presidency of Council of
Ministers which reviews the constitutionality of the regional legislation and may
challenge it before the Constitutional Court also on competition grounds.
• With respect to ex-post assessment, the ICA may tackle competitive restrictions
contained in administrative acts by challenging them directly before the
Administrative Tribunal if the responsible administration does not comply with the
ICA opinion.
Although no specific criteria are set out, the analysis used by ICA in assessing impact on
competition involves criteria that are similar to those detailed in the OECD Competition
Assessment Toolkit.
In the Italian legal framework, the more formal competition impact assessment is carried
out only by central government departments as a part of their Regulatory Impact
Assessment (RIA) and is required when the proposed measure is expected to have a
substantial impact on firms. There is no ex-post competition impact assessment obligation in
the framework.
Ex-ante competition impact assessment therefore applies only to legislation and regulations
proposed by the government and it is based on the OECD checklist. While the ICA is not
directly and formally involved in the RIA process, the relevant government departments
may, at their discretion, consult with the ICA (and other relevant stakeholders) during the
RIA process to gather inputs and information for the ex-ante competition impact
assessment. However, a new provision was introduced in 2011 that obliges government
departments to seek a binding opinion of the ICA when performing competition impact
assessment on acts introducing restrictions on access to economic activities.
At the regional or local level, the ICA can be indirectly involved in competition impact
assessments or informally consulted upon request. For instance, in 2007 the ICA has
published guidelines for regional government entities and it has assisted the Tuscany Region
in carrying out a specific example of ex-ante impact assessment.
23
Korea – Korea Fair Trade Commission
Objectives: If a regulation aimed at certain policy goals is devised without consideration of
its impact on economic agents, it can lead to unexpected adverse side effects on
competition. Based on this recognition, competition assessment was introduced to minimize
adverse impacts on competition and find alternatives to achieve original policy objectives in
an efficient manner from the initial stage of devising and adopting a regulatory framework.
Role: Newly established or strengthened regulations included in enacted or revised laws are
subject to Regulation Impact Assessment by the Prime Minister’s Office (PMO). Since 2009,
the regulations subject to the PMO’s assessment are transmitted to the KFTC for a
competition assessment.
Implementation: The KFTC adopted a two-step competition assessment procedure similar to
the one described in the OECD’s Competition Assessment Toolkit.
Preliminary assessment, the first step, is conducted by answering the questions categorized
into four sections. The questions are aimed at checking the potential negative impact that
new regulations might have on competition aspects such as new entry, competition
capacity, competition incentives and consumer choice.
Subsequently, the assessment moves to an in-depth assessment, the second stage, if an
adverse impact on competition, even if minimal, is identified at the first stage.
During the in-depth assessment, the impact of the established or tightened regulations are
analysed in a comprehensive manner – by examining the impact on new entry, prices,
change in output, quality of products and service, diversity, innovation and growth.
Mandates: The Monopoly Regulation and Fair Trade Act (MRTA) includes the provision that
mandates other government agencies planning to establish or add potentially
anticompetitive laws to consult with the KFTC before official procedures are opened. (Article
63, mandatory process before pre-announcement of legislation).
Under the Basic Law on Administrative Regulation, KFTC is supposed to conduct competition
assessment on all newly established or strengthened regulations that are subject to
regulatory impact assessment.
Scope: In principle, all types of guidance and regulations proposed by Ministries, local
government and regulatory entities are subject to competition assessment. KFTC can also
undertake competition assessment on existing laws as well as newly established or
strengthened regulations.
Since 2009, the KFTC has carried out advocacy activities for existing laws and regulations.
Each year the KFTC selects several anticompetitive regulations among existing laws and
requests professional research institutions to conduct research on them to improve entry
regulations.
24
Japan – Japan Fair Trade Commission
Policy evaluations conducted by the government are stipulated in Article 3 of the
Government Policy Evaluations Act (Act No. 86 of 2001) (hereinafter, the "Act"). Article 9 of
the Act and Article 3, item (vi) of the Ordinance for Enforcement of the Act (Ordinance No.
323 of 2001) stipulates that ex-ante evaluations shall be conducted where a regulation is
established, amended, or abolished.
Regarding this framework of ex-ante evaluations, which is based on the concept of the
improvement of the quality of regulations and the fulfilment of accountability to the public,
the "Implementation Guidelines for ex-ante Evaluation of Regulations" (approved at the
Interministerial Liaison Meeting on Policy Evaluation on August 24, 2007) stipulates that
costs and benefits shall be estimated when establishing, amending or abolishing regulations.
Competitive impact is considered as one of the elements in this cost analysis.
The "Administrative Evaluation Program" (published in April 2010 by Ministry of Internal
Affairs and Communications (hereinafter, the "MIC")) stipulates that the trial of identifying
and analyzing competitive impact for the ex-ante evaluation of regulations shall be
commenced in association with the Japan Fair Trade Commission (hereinafter, the "JFTC").
Currently, each ministry is expected to fill out a checklist on ex-ante evaluation, which
comprises a series of questions on the potential impact on competition among competitors
in the market as a result of the proposed introduction, amendment or abolishment of
regulations. The completed checklist is submitted to the Administrative Evaluation Bureau of
the MIC, on a voluntary basis, while the JFTC provides necessary support, such as giving
advice when it is consulted by ministries completing the checklist (The administrative
circular from the MIC on April 19, 2010).
25
Mexico – Comisión Federal de Competencia Económica (Federal Economic Competition
Commission)
The Federal Economic Competition Commission (COFECE) is entrusted with the enforcement
and application of the Federal Economic Competition Law (FECL) through preventive and
corrective measures. COFECE can conduct competition assessment of both new and existing
laws, rules and regulations in order to promote a pro-competitive legal regime.
The objective of ex ante competition assessment is to promote the inclusion of competition
values in laws, regulations, and other administrative acts, so that they do not unduly hinder
competition. Ex post competition assessment seeks to influence decision-makers to improve
conditions for market competition and raise awareness concerning government-imposed
obstacles impeding free market access.
The Commission can issue non-binding opinions regarding both new and existing legislation,
regulations, and policies at the federal and local levels. For ex ante competition assessment,
the Commission bases its efforts on a checklist that helps to identify when a particular
proposal may unduly hinder competition. It subsequently conducts in-depth analysis in
which policy alternatives are proposed and weighted against the draft proposal.
For ex post competition assessment, the Commission relies on highly skilled technical staff
to conduct economic and statistical analysis to calculate how markets have been affected by
a lack of competition.
While some policies are identified for competition assessment screening due to their federal
nature (as within the framework of Regulatory Impact Assessment), others are selected due
to their strategic nature and relevance for Mexicos’ economy, as is the case for market and
sector studies.
Additionally to COFECE’s advocacy activities, competition assessment fits explicitly into the
agency’s legal mandate. According to article 12 of the FECL, subsections XIII through XV,
COFECE’s Board of Commissioners has the authority to issue non-binding opinions regarding
draft laws, regulations, agreements, circulars, provisions and other generally applicable
administrative acts. Also, subsection XXIII states that COFECE may conduct or order sector
and industry studies or investigations with the aim to emit recommendations to public
authorities. Furthermore, since 2013, competition assessment is now included within RIA,
which is itself mandatory for all Federal level government bodies.
Competition assessment can be applied to all sectors, products, services, and activities
reviewed by COFECE which account for 97% of Mexican GDP. Only the telecommunications
and broadcast markets are excluded from this. As it can issue opinions regarding specific
regulations as well as on entire sectors, such as the financial services or agribusiness
industries, competition assessment conducted by COFECE is in fact overarching with a
potential to impact the entire Mexican economy.
26
The Netherlands – Autoriteit Consument & Markt (Authority for Consumers and Markets
(ACM))
The ACM, which is a combined competition/consumer/regulator, conducts a test on
proposals for draft legislation or ministerial regulations. The procedure is contained in article
6 of the information-exchange protocol between the Minister and ACM.
The Minister of Economic Affairs or the Minister for Infrastructure and the Environment
sends proposals for decisions on draft legislation/regulation, which could be of influence on
the tasks that ACM has to implement, to ACM for ACM to conduct an implementation test.
(Should the proposal for a decision on draft legislation emanate from another Ministry, that
Ministry will be requested by the Minister of Economic Affairs to send the proposal to ACM).
The relevant Minister ensures a timely sending of the proposal for a decision on draft
legislation/regulation so that the test can influence the decision-making process.
In the event that the proposal is not sent to ACM by the relevant Ministry, ACM may
conduct an ex officio test and inform the relevant Minister of its intention to do so.
ACM conducts the test within 4 weeks of the request. In special circumstances, ACM and the
relevant Minister can agree upon a different time-frame.
In the implementation test, ACM addresses the following issues:
a. the degree to which the draft legislation/regulation can be implemented and
enforced effectively;
b. the effects on ACM in terms of personnel, organization an finances; and
c. possibilities to increase the effectiveness and efficiency of the proposed
legislation/regulation.
ACM sends the results of the implementation test to the relevant Minister. In the Official
Explanatory Memo that is attached to the draft legislation/regulation, the Minister explains
how ACM’s implementation test has been taken into consideration in the decision-making.
ACM publishes the implementation test after the relevant decision has been published by
the relevant Minister, unless the Minister and ACM agree otherwise.
27
Papua New Guinea – Independent Consumer & Competition Commission
The authority that has the role of regulating competition in Papua New Guinea (PNG) is the
Independent Consumer and Competition Commission (“ICCC”). In its regulation of the PNG
economy the ICCC aims to achieve its primary objectives of:
•
•
•
Enhancing the welfare of the people of PNG through the promotion of competition,
fair trading and the protection of consumers interests;
Promoting economic efficiency in industry structure, investment and conduct; and
Protecting the long-term interests of the people of PNG with regards to prices,
quality and reliability of significant goods and services.
The ICCC administers the Independent Consumer and Competition Commission Act (“ICCC
Act”), which sets out its functions, scope and mandate. The ICCC Act is based on principles
similar to that of the Australian Trade Practices Act 1974 (now the Competition and
Consumer Act 2010). The ICCC Act mandates the ICCC with three key roles:
1. Economic Regulation;
2. Competitive Market Conduct; and
3. Consumer Protection and consumer product safety
The Commission also has responsibility to monitor or set maximum prices for a small
number of essential consumer goods and services.
The ICCC is responsible for enforcing competition law, and in particular the ICCC is tasked to
promote and facilitate competitive markets through the enforcement of market conduct
rules. The ICCC applies the Substantial Lessening of Competition test to ascertain the level of
damage done to the competitive process.
Like any other law there are exemptions. Section 65 of the ICCC Act exempts application of
the market conduct rules on any State owned enterprise that is established by an Act of
Parliament but while this has not been tested in the courts, the ICCC interprets the
exemption narrowly.
The ICCC also undertakes competition assessments. As part of this competition assessment
function the ICCC is currently conducting a review of major legislation, regulations and
policies governing key economic sectors in the PNG economy, to identify anti-competitive
clauses and bring them to the attention of the relevant authorities in these key sectors to in
order to have them amended.
The ICCC aims to present the relevant authorities with evidence of the economic benefits of
removing or modifying the protectionist anti-competitive clauses that exist in key economic
sectors in PNG. This includes highlighting the economic costs to PNG’s economy of retaining
these anti-competitive clauses.
The ICCC also aims to present these ideas and lobby relevant authorities in order to bring
about changes in the markets affected by these anti-competitive clauses.
28
Portugal – The Portuguese Competition Authority (PCA)
The Portuguese Competition Authority (PCA) has established as a priority the development
of internal capacities for the implementation of a Competition Impact Assessment program
for ex-ante and ex-post evaluation of Portuguese public policies.
The PCA recently created a Special Unit for Competition Assessment of Public Polices, with
the mission of implementing a competition impact assessment procedure of public
legislative and regulatory activities, within the PCA, thus contributing to a more procompetitive approach to market regulation. With the creation of this Special Unit, the PCA
recognizes that its role in Competition Policy is not restricted to enforcement but also
involves competition advocacy and the promotion of more efficient practices in the markets
and in the regulation of those markets.
The PCA has planned a number of initiatives to contribute to creating competition impact
assessment capacities within the authority and raise public and private awareness of the
benefits of pro-competitive public interventions. Considering the expected positive impact
on the Portuguese economy of pro-competitive regulation, the PCA wants to turn this
initiative into a national project involving governmental institutions at all levels and sector
regulators.
To attain the described objectives, a plan was defined with the following stages to be
implemented in parallel:
1) Policy formulation:
a. Drafting Competition Assessment Guidelines, drawing on the OECD Toolkit,
the experience of other EU competition authorities and the on-going ICN
work
b. Capacity building at the PCA by setting an internal unit.
2) Advocacy: establishing the basis for communicating effectively with stakeholders:
a. Institutional: promoting awareness of competition assessment as part of a
more efficient regulation and a means of enhancing public policies impact on
economic efficiency, which may also involve capacity building in
Government, Parliament and other specific public institutions.
b. Private stakeholders: involving business and consumer organizations to
promote awareness and develop partnerships in identifying possible areas of
intervention;
c. Internal: building on the knowledge of sectors deriving from competition law
enforcement and creating internal communication channels to identify areas
of intervention.
d. Public consultation of draft guidelines.
3) Intervention: at this stage, intervention will focus on developing institutional
capabilities (knowledge, skills and human resources) by:
a. Intervention in a small number of cases selected to illustrate competition
assessment in the Portuguese context, considering the likely impact on
competitive conditions;
b. Ex post intervention by conducting competition assessment analysis of the
regulatory framework in two selected sectors.
Both these stages will be instrumental in the guidelines’ development and the internal
unit’s formation.
29
4) Strategic Planning: the development of the project will form a team with substantial
experience to continue carrying out these functions on an on-going basis.
According to its By-laws (approved by Decree-Law no. 125/2014, of August 18), the PCA is
responsible for promoting the adoption of pro-competitive practices and for disseminating a
competition culture, as well as tasked with contributing to the improvement of the
Portuguese legal system in all areas that may affect competition. In pursuance of those
goals, the PCA has the power to issue recommendations, to issue opinions on the
Parliament’s or the Government’s request on legal and other initiatives that relate to the
promotion and safeguard of competition, as well as the power to issue suggestions or
proposals to the creation or revision of the legal and regulatory framework. The PCA also
has the power, under the new Portuguese Competition Act of 2012 (Law no. 19/2012, of
May 8), to conduct market studies and sector inquiries, following which it may address
recommendations to re-establish or ensure competition on the market.
Given the broad mandate that the Statute entrusts to the PCA, there are no explicit limits,
exemptions or exceptions to its advocacy powers.
30
Russian Federation – Federal Antimonopoly Service
The Federal Antimonopoly Service of the Russian Federation (the FAS Russia) is actively
involved in the development of sectoral policies in many commodity markets through the
provision of pro-competitive advice. In the Russian Federation competition assessment is an
integral part of the process of Regulatory Impact Assessment (hereinafter – RIA). In
accordance with the Resolution of the Government of the Russian Federation on 30.01.2015
№ 83 the RIA applies to all laws and regulations that affect or may affect terms of
conducting business in Russia.
The procedure for inter-agency coordination with the relevant executive authorities,
provides for mandatory coordination with the FAS Russia where the adoption of a proposed
legislative act would directly impact on competition. This process is regulated by the
Government Resolution dated 13.08.1997 № 1009 and by the FAS Russia Regulations.
Under the Federal Government Regulation on 28.12.2012 № 2579-r and in order to promote
competition in various sectoral markets, the Action Plan "Development of competition and
improvement of antimonopoly policy” (hereinafter "Road map") was approved. The
objectives of the "Road map" are to define a set of measures for the development of
competition, which includes reducing the share of the public sector in the economy, develop
competition in infrastructure sectors - including natural monopolies, remove administrative
barriers for business, and increase consumer protection mechanisms. The "Road map"
highlights priority activities for the development of competition in individual sectors,
including pharmaceuticals, medical services, air transport, telecommunication services,
preschool education, and petroleum products. The “Road Map’s” framework includes
targets to assess its effectiveness. The FAS Russia is the lead executor of the “Road Map”,
with the Russian Ministry of Economic Development, the FTS of Russia and other federal
executive authorities, as co-executors. Monitoring progress of the implementation of the
"Road map" is made every 3 months, with the results are presented to the Government of
the Russian Federation.
In addition, there is a Governmental Commission on competition and the development of
small and medium-sized businesses, which is chaired by the First Vice-Premier of the Russian
Federation, Igor Shuvalov. The Commission is a permanent body established to coordinate
the activities of executive authorities in relation to their interaction with representatives of
the business community in order to develop proposals relating to the implementation of the
state policy in the field of competition and the development of small and medium-sized
businesses. The main objectives of the Commission are to review and to prepare proposals
for the implementation of the decisions of the President of the Russian Federation and the
Government of the Russian Federation, on defining measures of state support for small and
medium-sized businesses and to improve their efficiency and other issues relating to the
competence of the Commission
Furthermore, according to the Federal Law on 26.07.2006 № 135-FZ "On Protection of
Competition", the FAS Russia is obliged to submit an annual report "On the state of
competition in the Russian Federation" to the Government of the Russian Federation. This
highlights the FAS Russia's major activities in the field of revising legislation and law
enforcement practices during the reporting period, as well as its analysis of competition in
socially significant markets that it has identified.
31
South Africa – Competition Commission
Section 21 of South Africa’s Competition Act, 89 of 1998, as amended (“Act”) outlines the
functions of the Commission, which include the responsibility to review legislation and
public regulations and to report any provision in such legislation or regulation that permits
anti-competitive behaviour. It is from this premise that the Commission evaluates and
makes comments on legislation.
The Commission adopts an advocacy approach in its policy assessment, wherein it engages
with Government departments through various avenues.
These include written
submissions, one-on-one meetings with policy makers, combined workshops or seminars on
particular policy subjects, or the publication of position papers on policy matters.
The Act empowers the Commission to comment on competition matters arising in any
legislation or policy, in all tiers of government. The Act also makes provisions for the policy
approach which must be adopted in instances of concurrent jurisdiction with other
regulators.
32
Spain – Comisión Nacional de los Mercados y la Competencia (National Markets and
Competition Commission)
The system for reviewing proposed legislation from the competition perspective is
integrated into the policy drafting process as explained below. The legislator is obliged by
law to conduct a competition assessment while the Spanish Competition Authority (CNMC) 14
may also conduct its own assessment, which may result in recommendations to the
legislator. The Competition Authority may also analyse existing legislation and even force
the elimination of unnecessarily anticompetitive regulation.
Since January 2010, every new piece of legislation has to go through the filter of a
competition impact assessment before it is passed. This is a fundamental achievement, for
which the Spanish Competition Authority takes considerable responsibility, given that the
legal act which made this competition impact assessment expressly mandatory, followed on
from the publication of the Guide to Competition Assessment by the Spanish Competition
Authority.
Indeed, Royal Decree 1083 of July 3 2009, regulating the Report on the Impact of New
Legislation, for the first time established an obligation to assess competition issues when
drafting a report on the impact of new legislation. The Royal Decree provides for the
elaboration of an economic impact report comprising not only budgetary but also other
economic issues, expressly mentioning competition issues.
Before the Royal Decree entered into force, a Methodological Guide for Impact Assessment
of Regulation had been elaborated by the Spanish Competition Authority setting out the
principles and methods for competition assessment of draft legislation.
The Competition Authority can analyse existing regulation as well as draft regulation. As a
matter of fact, it may ex officio analyse existing administrative acts and regulations and
make recommendations for amendments to the competent Public Administrations.
In exceptional cases, by virtue of Article 5.4 Act 3/2013 the CNMC may challenge before the
Courts those existing administrative acts and regulations from which restrictions to
competition are derived. These functions have been supplemented with some additional
competences, attributed by art. 27 Act 20/2013 of 9 December 2013 on the Guarantee of
Market Unity, to challenge before the Courts any act or regulation allegedly breaking the
free movement of services and the right of establishment in the whole territory of Spain.
As regards the scope of application of the competition assessment regime, the CNMC's
powers are not sector- or market-specific and thus the whole body of legislation and
regulation is covered by the regime.
More broadly, the competition advocacy functions assigned to the Competition Authority by
Act 3/2013 of 4 June 2013 creating the new Comisión Nacional de los Mercados y la
Competencia (CNMC) are mainly the following:
14
The present Comisión Nacional de los Mercados y la Competencia (CNMC) is the result of
the merger between the Competition Authority (CNC) and six sector regulators in charge of
energy, telecommunications, audio-visual services, postal services, rail transport and airport
tariffs
33
•
•
•
Issue reports on draft legislation or regulation, which may include recommendations
aiming at maintaining or fostering effective competition in the markets. (Article
5.2.a).
In the field of State aid control, the CNMC, ex officio or at the request of the Public
Administrations and without prejudice to the European Commission’s competences,
may analyse the award criteria and the possible effects of State aid on competition
in the markets, and subsequently make recommendations (Article 5.1.e).
To promote and conduct competition studies or general reports on sectors and to
elaborate guides, like the Guide for competition assessment previously mentioned
or the 2012 Guide on public procurement.
34
Sweden – Konkurrensverket (Swedish Competition Authority – SCA)
The Swedish Constitution sets out an obligation for the Government to collect information
and opinions from relevant authorities in the preparation of government affairs – for
example during the legislative procedure. 15 The government therefore refers legislative
proposals that are relevant to the SCA’s field of activities. The SCA is required to respond to
all such referrals from the government.
The Regulatory Impact Assessment Ordinance sets out a similar obligation for all
government authorities to refer proposed regulations and other policies to relevant
authorities for opinions and information. When doing so they are also obliged to provide a
crude form of competition impact assessment. 16 All government authorities shall for
example pay attention to the possible impact on competition that the proposal may have
and identify alternative solutions to the problem that they try to address. The SCA is free to
respond to such referrals on its own discretion.
Before the Government can draw up a legislative proposal, the matter in question must be
processed, analyzed and evaluated. That task is assigned to committees normally consisting
of officials from the ministry concerned, experts and/or politicians. The SCA can sometimes
be invited to provide an expert to such committees.
The government regularly assigns specific tasks to the SCA. It often involves a sector or a
sector specific question that needs to be analysed from a competition perspective. The
SCA’s task is then to analyse and address market specific problems and, when possible,
suggest solutions.
The SCA can also initiate own-initiative market studies. The SCA’s market studies are
conducted to gain an in-depth understanding of how sectors, markets, or market practices
are working; in particular assessing existing regulations and policies and their effects on
competition. Market studies are conducted primarily in relation to concerns about the
function of markets arising from, for example, the structure of the market, consumer
conduct and/or public sector interventions.
Most market studies are carried out by the SCA but sometimes they are performed by
academics through commissioned research that SCA orders and contracts. Such
commissioned research relates to issues where the SCA sees a direct need to analyse or
where there is a particular issue that needs to be highlighted. The researchers’ findings are
generally published in a special report series of commissioned research. The SCA also has a
special government appropriation to be used towards research within the fields of law and
economics in the area of competition.
15
16
The Instrument of Government (1974:152) ch. 7 art. 2
Regulatory Impact Assessment Ordinance (2007:1244) art. 7
35
Switzerland – The Competition Commission
The main objective of the competition assessment regime is to point out (unnecessary)
public restraints of competition and to advise on how to prevent them.
The competition assessment regime applies to both new and existing legislation, regulations
and policies.
Any legislative authority is obliged to submit federal bills relating to commercial matters and
other federal bills that are likely to influence competition to the Secretariat of the
Competition Commission (Secretariat). The Secretariat is bound to determine whether such
legislation may cause distortions or undue restraints of competition. Moreover, the
Competition Commission (COMCO) shall – in consultation procedures – provide its opinion
on federal bills that restrain or otherwise influence competition. Finally, the COMCO and its
Secretariat may submit recommendations on the creation, implementation, revision or
repeal of regulations relating to commercial matters.
In some cases, the Secretariat and other bodies responsible for conducting competition
assessment cooperate on the assessment.
Note: The following description is limited to the competition agency’s mandate for
competition assessment pursuant to the Federal Act of 6 October 1995 on Cartels and other
Restraints of Competition (Cartel Act, CartA).
•
•
•
According to Article 46(1) CartA federal bills relating to commercial matters and
other federal bills that are likely to influence competition shall be submitted to the
Secretariat. It determines whether such legislation may cause distortions or undue
restraints of competition. In addition, in a consultation procedure, the COMCO shall
provide its opinion on federal bills that restrain or otherwise influence competition
and may submit its opinion on cantonal bills (Article 46(2) CartA).
Pursuant to Article 45(2) CartA, the COMCO and its Secretariat may submit
recommendations on how to promote effective competition to authorities (at the
federal, cantonal or communal level), especially with regard to the creation and
implementation of regulations relating to commercial matters.
Furthermore, the Secretariat advises governmental offices on matters relating to the
CartA (Article 23(2) CartA). Finally, the COMCO (it may instruct the Secretariat to
carry out this task in less important matters) shall provide other authorities with expert reports on competition law issues of general importance (Article 47(1) CartA).
The competition assessment covers any legislation, regulation and policies relating to
commercial matters or matters that are likely to influence competition.
Competition assessment is even possible in areas where statutory provisions that do not
allow for competition take precedence over the provisions of the CartA (Article 3 CartA). In
these areas, the CartA is not applicable. However, the possibility to submit
recommendations on how to promote effective competition to other bodies enables the
competition authority to have some influence on this existing legislation, which can be
construed as a trade-off for the fact that these statutory provisions exclude competition. By
means of recommendations, the COMCO and its Secretariat can therefore point out public
restraints of competition.
36
Tunisia – Conseil de la Concurrence (Competition Council)
In accordance with Tunisian Law no. 91-64 of July 29 1991 on Competition and Prices,
Tunisia opted for the creation of an independent authority, the Competition Council,
entrusted with a two-fold mission including an enforcement role 17, as well as an advisory
role 18.
The Competition Council provides market analysis and conducts competition assessment
through its enforcement and advisory powers.
The objectives pursued are to identify:
- The effects of individual or collective practices on competition;
- The effects of draft legislation, regulation or policy on competition;
- The effects of mergers or exemptions on competition.
In addition, the Competition Council has broadened its scope of activities by using powers
assigned to its Rapporteur general to carry out market studies to assess the state of
competition in priority sectors of the economy 19.
The fact that sector regulators (such as those in the telecoms, insurance and banking
sectors) have jurisdiction over competition matters does not deprive the Competition
Council from its horizontal competency of evaluating competition across all sectors.
17
Article 11 of Law no. 91-64 of July 29 1991.
Article 9 of Law no. 91-64 of July 29 1991.
19
Article 11 of the Council’s internal rules of April 20, 2006.
18
37
United Kingdom – Competition and Markets Authority
UK competition assessments: ex post and ex ante analysis
Ex post – Market Studies and Market Investigations
Market studies are examinations into the causes of why particular markets may not be
working well, taking an overview of regulatory and other economic drivers and patterns of
consumer and business behaviour.
Market studies may lead to a range of outcomes, including: a clean bill of health, actions
which improve the quality and accessibility of information to consumers, encouraging
businesses in the market to self-regulate, making recommendations to the Government to
change regulations or public policy, taking competition or consumer enforcement action,
and making a market investigation reference, or accepting a Undertaking in Lieu.
Market studies are conducted under the CMA’s general review function in section 5 of the
Enterprise Act 2002 (EA02). The Enterprise and Regulatory Reform Act 2013 (ERRA13)
introduced a formal requirement for a market study to be commenced by the issuing of a
market study notice when the CMA exercises its function under section 5 for certain
specified purposes.
Market investigations are more detailed examinations into whether there is an adverse
effect on competition in the market(s) for the goods or services referred. If so, the CMA
must decide what remedial action, if any, is appropriate. Section 131 of the EA02 sets out
the power of the CMA to make references.
For
more
details
on
both,
please
click
on
the
following
link:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270354/C
MA3_Markets_Guidance.pdf
Recently government departments are also increasingly playing an ex post role in assessing
the impact of policies on competition. This can sometimes form part of the wider ex-post
evaluation of a policy. The Cabinet Office’s Markets for Government Services Team has an
interest in reviewing markets of government creation - their remit includes, but is not
limited to, the impact regulation has on public markets.
Ex-ante – Competition assessments in (regulatory) impact assessments
Section 7(1) of the EA02 gives the CMA the power to make proposals or give information
and advice to Ministers and their departments in respect of any proposed changes in law,
regulation or policy.
Competition assessments can be carried out by policy makers when they complete an
Impact Assessment. The CMA provides help and guidance to departments who ask for help
with their competition assessments. The CMA can refer policy makers to the framework
questions set out in the guidance published by the Office of Fair Trading, one of CMA’s
predecessors. These questions are still helpful to policy makers, even though the Impact
Assessment process has changed. Please click on the following link for the guidance:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/191489/G
reen_Book_supplementary_guidance_completing_competition_assessments_in_impact_ass
essments.pdf
38
The competition assessment is no longer a compulsory part of the Impact Assessment
process, but it should still be carried out where appropriate i.e. where there are significant
competition impacts (potential or realised). The CMA works with the Treasury and the
Department for Business, Innovation and Skills (BIS) to get involved earlier, in the process,
with policies that may have an impact on competition.
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United States – Department of Justice Antitrust Division and Federal Trade Commission
Broadly speaking, the U.S. antitrust agencies engage in “competition advocacy” to
lawmakers and regulators. At its core, this advocacy focuses on the impact on competition
of draft or existing legislation, regulations and policies, even if not formally termed
“competition assessment.” The objective of this type of advocacy is to provide policymakers
with a framework to analyze competition issues raised by pending governmental actions or
ongoing judicial disputes and to advocate for procompetitive policies. In providing this
analytical framework, the antitrust agencies attempt to focus policymakers on (1) potential
restrictions to competition that may result from government action, (2) whether the action
is adequately tailored to address the anticipated harm, and (3) whether the benefit of the
action exceeds the potential harm to competition that may result. Separate from the
competition advocacy in which the U.S. antitrust agencies engage, legislatures and
regulators that draft laws, regulations and policies, and specific agencies with oversight
authority to review proposed laws or regulations (e.g., the Office of Information and
Regulatory Affairs within the Executive Office of the President) can and do include the
consideration of competition principles in their work.
The Antitrust Division and FTC engage in competition advocacy before other policymakers,
including state legislatures and regulatory boards; state and federal courts; other federal
agencies; and professional organizations, such as bar associations. Typically, the agencies
opine either in response to specific requests from policymakers or where public comments
are sought. The advocacy can take many different forms, including formal actions, such as
providing testimony or written comments to Congress or state legislators or filing amicus
briefs with courts. The antitrust agencies also offer counsel to Federal and state agencies,
providing informal consultations and presentations. Advocacy also can take the form of
public hearings and workshops, which can bring together experts from business,
government, law, and academia to discuss competition issues of interest, including the
agency’s views on those issues. The Division and FTC also promote competition principles
through a variety of activities, such as speeches before associations of state regulators,
interviews with the press, and articles in general interest publications.
The U.S. antitrust agencies’ competition advocacy efforts span many sectors that are crucial
to consumers and where competition policy plays a particularly important role such as
intellectual property, health care, agriculture, telecommunications, the regulation of
professions, and energy. Recurring themes in advocacies involving existing or proposed
legislation or regulation include facilitating entry or avoiding new and unnecessary entry
barriers; opposition to antitrust immunity for certain types of anticompetitive conduct; and
having courts narrowly construe existing antitrust exemptions and immunities.
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Zambia – Competition and Consumer Protection Commission
In Zambia, the Competition and Consumer Protection Commission (“the Commission”) is
mandated by the Competition and Consumer Protection Act (“the Act’) to review the
operations of markets in Zambia and the conditions of competition in these markets.
Besides investigating cases of restrictive business practices, abuse of dominance and
regulating mergers and acquisitions, the Commission provides guidance to government on
the impact of draft or existing legislation and policies on competition in relevant markets.
The objective of the competition assessment regime is to avoid conflict of laws on
competition thereby hindering the enforcement of laws, most especially the competition
law.
The Commission did make several submissions to Government on why a statutory
instrument limiting only to three mobile players in the sector should be lifted as it was at
variance with one of the major aims of the Act which is to “safeguard and promote
competition.” In addition, the Commission has in the recent past written an advisory note to
Government on why it should not compel all Government institutions to have only Zambia
Telecommunications Company be the sole provider of internet services to these institutions
since it is also inimical to the aim of Act of safeguarding and promoting competition. In the
past, the Commission gave its position on the liberalisation of the international gateway in
order to allow for effective competition in the mobile service industry – a recommendation
that was adopted.
The Commission also offers advice to sector specific regulators on the need to observe
competition in their markets. In some of the legislation of some sector regulators,
competition is explicitly addressed. Thus sector regulators are advised to collaborate with
the Commission in conducting competition assessment of their respective sectors. For
example, the Zambia Information and Communications Technology Authority’s (ZICTA)
Information and Communications Technology (ICT) Act has an aspect of competition which
states that on matters relating to competition, ZICTA shall consult with the Commission.
Thus, in 2014, the Commission worked with ZICTA in assessing a merger where MTN sold its
telecommunications towers to IHS Zambia Limited.
In Zambia, there is a specific legal basis for an agency to conduct both ex ante competition
and ex post competition assessment or market/sector studies. Section 5 of the Act gives the
Commission the mandate to act as a primary advocate for competition and effective
consumer protection in Zambia; and also to advise Government on laws affecting
competition and consumer protection. As such, all advocacy activities carried out by the
Commission have the legal backing of the Act. Specifically, Section 38 of the Act allows for
market inquiries to be conducted, which can be a very useful way of obtaining information
on competition and provide the basis to advise the Government on how implemented laws
are affecting competition.
The Commission therefore, monitors legislative work programmes to identify potential areas
that may conflict with promotion of healthy competition for the benefit of consumers and
advise Government on such matters / concerns.
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